Protection of Freedoms Bill

REVISED
MARSHALLED
LIST OF AMENDMENTS
TO BE MOVED
ON REPORT

The amendments have been marshalled in accordance with the Order of 23rd January 2012, as follows—

Clauses 1 to 19
Schedule 1
Clauses 20 to 39
Schedule 2
Clauses 40 to 53
Schedule 3
Clauses 54 to 56
Schedule 4
Clauses 57 to 61
Schedule 5
Clauses 62 and 63
Schedule 6
Clauses 64 to 78
Schedule 7
Clauses 79 to 87
Schedule 8
Clauses 88 to 113
Schedules 9 and 10
Clauses 114 to 119

[Amendments marked * are new or have been altered]

Clause 1

BARONESS HAMWEE

1

Page 2, line 6, after “police” insert—

“(iii) taken from a person detained under section 136 of the Mental Health Act 1983,”

2

Page 2, line 8, leave out “or (ii)” and insert “, (ii) or (iii)”

LORD CAMPBELL-SAVOURS

3

Page 2, line 18, at end insert—

“or if the person from whom the DNA sample or fingerprint was taken has requested the destruction of section 63D material after the appropriate period.”

Clause 3

BARONESS ROYALL OF BLAISDON

LORD ROSSER

LORD TUNNICLIFFE

4

Page 3, line 32, leave out “3” and insert “6”

5

Page 3, line 34, leave out “3” and insert “6”

LORD HENLEY

6

Page 5, line 26, leave out from “adult”” to end of line 27 and insert “means a person aged 18 or over whose ability to protect himself or herself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise,”

Clause 14

LORD HENLEY

7

Page 10, line 36, at end insert—

“(5A) The responsible chief officer of police may apply to a District Judge (Magistrates’ Courts) for an order to retain a sample to which this section applies beyond the date on which the sample would otherwise be required to be destroyed by virtue of subsection (4) or (5) if—

(a) the sample was taken from a person in connection with the investigation of a qualifying offence, and

(b) the responsible chief officer of police considers that the condition in subsection (5B) is met.

(5B) The condition is that, having regard to the nature and complexity of other material that is evidence in relation to the offence, the sample is likely to be needed in any proceedings for the offence for the purposes of—

(a) disclosure to, or use by, a defendant, or

(b) responding to any challenge by a defendant in respect of the admissibility of material that is evidence on which the prosecution proposes to rely.

(5C) An application under subsection (5A) must be made before the date on which the sample would otherwise be required to be destroyed by virtue of subsection (4) or (5).

(5D) If, on an application made by the responsible chief officer of police under subsection (5A), the District Judge (Magistrates’ Courts) is satisfied that the condition in subsection (5B) is met, the District Judge may make an order under this subsection which—

(a) allows the sample to be retained for a period of 12 months beginning with the date on which the sample would otherwise be required to be destroyed by virtue of subsection (4) or (5), and

(b) may be renewed (on one or more occasions) for a further period of not more than 12 months from the end of the period when the order would otherwise cease to have effect.

(5E) An application for an order under subsection (5D) (other than an application for renewal)—

(a) may be made without notice of the application having been given to the person from whom the sample was taken, and

(b) may be heard and determined in private in the absence of that person.

(5F) A sample retained by virtue of an order under subsection (5D) must not be used other than for the purposes of any proceedings for the offence in connection with which the sample was taken.

(5G) A sample that ceases to be retained by virtue of an order under subsection (5D) must be destroyed.”

Clause 17

LORD HENLEY

8

Page 12, line 20, at end insert—

“(2A) Sections 63D to 63T do not apply to material to which paragraph 8 of Schedule 4 to the International Criminal Court Act 2001 (requirement to destroy material) applies.

(2B) Sections 63D to 63T do not apply to material to which paragraph 6 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011 (requirement to destroy material) applies.”

Clause 18

LORD HENLEY

9

Page 13, line 2, leave out from “to” to “63R” in line 4 and insert “material to which section 63D or”

10

Page 13, line 6, leave out “or derived”

Schedule 1

LORD HENLEY

11

Page 110, line 17, at end insert—

“(5A) The responsible chief officer of police may apply to a relevant court for an order to retain a sample to which this paragraph applies beyond the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5) if—

(a) the sample was taken from a person detained under section 41 in connection with the investigation of a qualifying offence, and

(b) the responsible chief officer of police considers that the condition in sub-paragraph (5B) is met.

(5B) The condition is that, having regard to the nature and complexity of other material that is evidence in relation to the offence, the sample is likely to be needed in any proceedings for the offence for the purposes of—

(a) disclosure to, or use by, a defendant, or

(b) responding to any challenge by a defendant in respect of the admissibility of material that is evidence on which the prosecution proposes to rely.

(5C) An application under sub-paragraph (5A) must be made before the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5).

(5D) If, on an application made by the responsible chief officer of police under sub-paragraph (5A), the relevant court is satisfied that the condition in sub-paragraph (5B) is met, it may make an order under this sub-paragraph which—

(a) allows the sample to be retained for a period of 12 months beginning with the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5), and

(b) may be renewed (on one or more occasions) for a further period of not more than 12 months from the end of the period when the order would otherwise cease to have effect.

(5E) An application for an order under sub-paragraph (5D) (other than an application for renewal)—

(a) may be made without notice of the application having been given to the person from whom the sample was taken, and

(b) may be heard and determined in private in the absence of that person.

(5F) In Scotland, an application for an order under sub-paragraph (5D) (including an application for renewal) is to be made by summary application.

(5G) A sample retained by virtue of an order under sub-paragraph (5D) must not be used other than for the purposes of any proceedings for the offence in connection with which the sample was taken.

(5H) A sample that ceases to be retained by virtue of an order under sub-paragraph (5D) must be destroyed.”

12

Page 110, leave out lines 23 and 24 and insert—

“(7) In this paragraph—

“ancillary offence”, in relation to an offence for the time being listed in section 41(1) of the Counter-Terrorism Act 2008, means—

(a) aiding, abetting, counselling or procuring the commission of the offence, or

(b) inciting, attempting or conspiring to commit the offence;

“qualifying offence”—

(a) in relation to the investigation of an offence committed in England and Wales, has the meaning given by section 65A of the Police and Criminal Evidence Act 1984,

(b) in relation to the investigation of an offence committed in Scotland, means a relevant offence, an offence for the time being listed in section 41(1) of the Counter-Terrorism Act 2008 or an ancillary offence to an offence so listed, and

(c) in relation to the investigation of an offence committed in Northern Ireland, has the meaning given by Article 53A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));

“relevant court” means—

(a) in England and Wales, a District Judge (Magistrates’ Courts),

(b) in Scotland, the sheriff—

(i) in whose sheriffdom the person to whom the sample relates resides,

(ii) in whose sheriffdom that person is believed by the responsible chief officer of police to be, or

(iii) to whose sheriffdom that person is believed by the responsible chief officer of police to be intending to come; and

(c) in Northern Ireland, a district judge (magistrates’ court) in Northern Ireland;

“relevant offence” has the same meaning as in section 19A of the Criminal Procedure (Scotland) Act 1995;

“a relevant search” has the meaning given by paragraph 20A(6).”

13

Page 111, line 20, at end insert—

“20HA Paragraphs 20A to 20F and 20H do not apply to paragraph 20A material relating to a person detained under section 41 which is, or may become, disclosable under—

(a) the Criminal Procedure and Investigations Act 1996, or

(b) a code of practice prepared under section 23 of that Act and in operation by virtue of an order under section 25 of that Act.”

Clause 21

LORD HENLEY

14

Page 16, line 31, leave out subsection (6)

Clause 24

BARONESS HAMWEE

BARONESS RANDERSON

15

Page 18, line 6, at end insert—

“( ) The rules shall provide for membership of the National DNA Database Strategy Board to include independent members.”

LORD CAMPBELL-SAVOURS

16

Page 18, line 14, at end insert—

“(10) The Secretary of State may by regulation introduce a statutory framework for the establishment of a Voluntary National DNA database.

(11) The National DNA Database Strategy Board shall, within a period of 12 months of commencement, report to the Secretary of State with recommendations on the establishment of a Voluntary National DNA database.

(12) The report on the establishment of a Voluntary National DNA database shall include the following—

(a) advice on options for the funding (both public and private) of the DNA database;

(b) advice on proposals for the charging of individuals for the taking and retention of sample DNA;

(c) advice on the security arrangements governing the retention of DNA samples;

(d) advice on the categorising of donors from whom DNA samples have been taken and from which a DNA profile has been derived;

(e) advice on the arrangements for the transfer of donor identification between categories;

(f) advice on requests for removal of individual DNA profiles from the database;

(g) advice on access by a responsible police officer to DNA profile information on the database; and

(h) advice as to which statutory organisation and in what circumstances access to DNA profile information shall be given.”

Clause 25

BARONESS ROYALL OF BLAISDON

LORD ROSSER

LORD TUNNICLIFFE

17

Page 18, line 30, leave out “3” and insert “6”

18

Page 18, line 34, leave out “3” and insert “6”

Clause 26

LORD HENLEY

18A*

Page 19, line 22, leave out “Subsection (2)” and insert “This section”

19

Page 19, line 26, at end insert—

“(1A) Before the first processing of a child’s biometric information on or after the coming into force of subsection (2), the relevant authority must notify each parent of the child—

(a) of its intention to process the child’s biometric information, and

(b) that the parent may object at any time to the processing of the information.”

BARONESS HAMWEE

[Amendments 20 and 21 are amendments to Amendment 19]

20

Line 4, at end insert “and the child”

21

Line 6, after “parent” insert “or child”

LORD HENLEY

22

Page 19, leave out lines 29 to 33 and insert—

“(a) at least one parent of the child consents to the information being processed, and

(b) no parent of the child has withdrawn his or her consent, or otherwise objected, to the information being processed.

(3) Section 27 makes further provision about the requirement to notify parents and the obtaining and withdrawal of consent (including when notification and consent are not required).”

BARONESS HAMWEE

BARONESS RANDERSON

23

Page 19, line 39, at end insert—

“( ) The relevant authority must ensure that information is provided to each parent and child on their rights under this Chapter, in language capable of being readily understood by the parent and child.”

BARONESS ROYALL OF BLAISDON

LORD ROSSER

24

Page 19, line 39, at end insert—

“(4A) Subsection (4) only applies to a child of the school year in which the majority of pupils in the pupil’s class attain the age of 12.”

Clause 27

LORD HENLEY

25

Page 20, line 4, leave out from “section” to “if” and insert “26(1A) and (2), the relevant authority is not required to notify a parent, or obtain the consent of a parent,”

26

Page 20, line 8, leave out “to give consent” and insert “to object or (as the case may be) consent to the processing of the child’s biometric information”

27

Page 20, line 10, after “to” insert “notify the parent or (as the case may be)”

28

Page 20, line 11, at end insert—

“(1A) A notification under section 26(1A) must be given in writing, and any objection to the processing of a child’s biometric information must be made in writing.”

Clause 28

LORD HENLEY

29

Page 21, line 25, leave out “the consent of no parent” and insert “there is no person falling within subsection (5) who must be notified or whose consent”

Clause 31

LORD HENLEY

30

Page 24, line 14, after second “the” insert “alteration or”

Clause 33

LORD LUCAS

31

Page 24, line 36, leave out “evidence in any such” and insert “criminal or civil”

LORD CAMPBELL-SAVOURS

32

Page 25, line 17, at end insert—

“(l) any organisation able to transmit images which derive from surveillance equipment that is subject to the code of practice under section 29”

Clause 38

BARONESS HAMWEE

BARONESS RANDERSON

33

Page 29, line 44, at end insert—

“(2A) Subsection (2) shall not apply to an authorisation granted in contemplation of any surveillance undertaken in pursuance of Part 3 of the Environmental Protection Act 1990 or the Noise Act 1996 in respect of noise.”

After Clause 38

BARONESS HAMWEE

BARONESS RANDERSON

34

Insert the following new Clause—

“Matters subject to legal privilege

Investigatory powers: legal privilege

(1) In section 5 of the Regulation of Investigatory Powers Act 2000 (interception with a warrant), after subsection (6) insert—

“(7) But an interception warrant does not authorise conduct undertaken for the purpose of doing anything in relation to—

(a) a communication, insofar as the communication consists of matters subject to legal privilege;

(b) communications data, insofar as the data relate to the communication of matters subject to legal privilege.

(8) In subsection (7), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.

(9) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an interception warrant or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.

(10) A code of practice issued under section 71 may in particular contain provision about—

(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to an interception warrant resulting in accidental acquisition of a communication, or communications data, falling within subsection (7);

(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.”

(2) In section 22 of that Act (obtaining and disclosing communications data), after subsection (9) insert—

“(10) An authorisation or notice under this section does not authorise or require anything to be done for the purpose of obtaining or disclosing communications data relating to the communication of matters subject to legal privilege.

(11) In subsection (10), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.

(12) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.

(13) A code of practice issued under section 71 may in particular contain provision about—

(a) the steps to be taken to minimise the risk of accidentally obtaining or disclosing communications data falling within subsection (10) in the course of anything done under this section;

(b) the steps to be taken if it appears that anything done under this section has accidentally resulted in such data being obtained or disclosed.”

(3) In section 27 of that Act (authorised surveillance and human intelligence sources), after subsection (4) insert—

“(5) An authorisation under section 28 or 32 does not authorise surveillance for the purpose of obtaining information about—

(a) anything taking place on so much of any premises as is in use for the purpose of legal consultations, or

(b) matters subject to legal privilege.

(6) An authorisation under section 29 does not authorise any activities involving conduct of a covert human intelligence source, or the use of such a source, for the purpose of—

(a) obtaining matters subject to legal privilege,

(b) providing access to any matters subject to legal privilege to another person, or

(c) disclosing matters subject to legal privilege.

(7) In subsection (5), “legal consultation” means—

(a) a consultation between a professional legal adviser and his client or any person representing his client, or

(b) a consultation between a professional legal adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings,

except in so far as the consultation consists of anything done with the intention of furthering a criminal purpose.

(8) In subsections (5) or (6), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include anything done with the intention of furthering a criminal purpose.

(9) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether anything referred to in subsection (7) or (8) is done with the intention of furthering a criminal purpose.

(10) A code of practice issued under section 71 may in particular contain provision about—

(a) the steps to be taken to minimise the risk of conduct undertaken in reliance on this Part accidentally resulting in information of a kind mentioned in subsection (5) being obtained or in any of the things mentioned in subsection (6)(a), (b) or (c) being done;

(b) the steps to be taken if it appears that such conduct has accidentally resulted in such information being obtained or such things being done.”

Clause 40

LORD MARLESFORD

35

Page 33, line 33, at end insert—

“( ) A further safeguard shall be that, unless explicitly provided for in the statute providing for the power of entry, all powers of entry shall be exercised by agreement with the premises owner or by warrant.”

36

Page 33, line 33, at end insert—

“( ) A further safeguard shall be that, notwithstanding the statute providing for the power of entry, a power of entry may only be used without warrant, or without agreement with the owner of the premises to be entered, in cases where the authority using the power can demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought.”

37

[Withdrawn]

After Clause 41

BARONESS ROYALL OF BLAISDON

LORD ROSSER

[In substitution for Amendment 37]

37A*

Insert the following new Clause—

“Rewriting powers of entry to address metal theft

(1) Section 26 of the Theft Act 1968 (Search for stolen goods) is amended as follows—

(2) In subsection (1), after “goods” insert “or that admission to a place specified in the information is reasonably required in order to ascertain whether provisions under section (22A)(1) are complied with,”.

(3) After subsection (1) insert the following—

“(1A) A warrant granted under subsection (1) for the purposes of ascertaining compliance under section (22A), shall authorise that person to enter that place at any time within one month from the date of the warrant”

(4) After section 22 insert the following new section—

“22A Handling of stolen metal

(1) Subject to the provisions of section 26, any constable shall have a right at all reasonable times—

(a) to enter and inspect any place for the time being a place which is occupied by a scrap metal dealer wholly or partly for the purposes of such business, or any place which he reasonably believes is occupied for such a purpose, irrespective of whether or not it is entered on the register;

(b) to require production for inspection, of any scrap metal kept at that place and any record which the dealer has in his or her possession.

(2) A magistrate may grant, on application by a senior police officer, a closure order or, where such an order has already been granted, an application to extend a closure order in relation to a place, subject to the following conditions—

(a) the senior officer reasonably believes that the trader is encouraging, supporting or facilitating the trade in stolen metal whether knowingly or not, and

(b) in his or her view such closure is necessary for the prevention of theft or handling of stolen goods or for the further investigation of those offences.

(3) For the purposes of this section a person shall be deemed as carrying on business as a scrap metal dealer if—

(a) a place in that area is occupied by him or her as a scrap metal store, or

(b) no place is occupied by him or her as a scrap metal store, whether in that area or elsewhere, but he or she has his or her usual place of residence in that area, or

(c) a place in that area is occupied by him or her wholly or partly for the purposes of that business.”.”

Clause 44

LORD HENLEY

38

Page 35, line 24, after “41” insert “which neither amends nor repeals any provision of primary legislation”

39

Page 35, line 25, leave out from “Wales” to end of line 27 and insert—

“(8) In subsection (7) “primary legislation” means—

(a) a public general Act, and

(b) a Measure or Act of the National Assembly for Wales.”

Clause 49

LORD HENLEY

40

Page 38, line 31, after second “the” insert “alteration or”

Schedule 3

LORD HENLEY

41

Page 127, line 22, after second “the” insert “alteration or”

Clause 54

BARONESS HAYTER OF KENTISH TOWN

BARONESS ROYALL OF BLAISDON

LORD ROSSER

42

Page 40, line 24, at end insert—

“if there is no charge for unauthorised parking or if the following conditions are met—

(a) one or more notices which were clearly displayed when the vehicle was parked and—

(i) specify the sum of the charge for unauthorised parking; and

(ii) are adequate to bring the charge and parking requirements to the notice of drivers who park vehicles on the relevant land;

(b) the consent of the driver or the vehicle to the restriction was indicated by the positive acceptance of appropriate documentation before parking on the relevant land; and

(c) the owner or occupier of the land or those authorised to act on their behalf are unable to take steps to enforce the payment of parking charges against the driver because they do not know, and the driver has refused to provide, both their name and a current address for service for the driver.”

43

Page 40, line 32, at end insert—

“(7) In this section, lawful authority may be granted on application to the Secretary of State for approval of a parking enforcement scheme and the Secretary of State will not normally refuse an application for such a scheme which—

(a) is made by or on behalf of a recognised community group, residents’ association, local authority (including a neighbourhood, parish or town council) or similar body;

(b) is accompanied by a reasoned justification as to why a scheme is required;

(c) makes provision for a responsible person or officer to administer the scheme; and

(d) includes a code of conduct including a provision for redress and independent appeal for users of motor vehicles who may be subject to penalties under the scheme and in appropriate cases provision of compensation;

and the Secretary of State may grant an application on such terms as may be reasonably required including a provision to time limit a scheme where necessary.”

After Clause 56

BARONESS HAYTER OF KENTISH TOWN

BARONESS ROYALL OF BLAISDON

LORD ROSSER

44

Insert the following new Clause—

“Alternative Dispute Resolution for unpaid parking charges

The Secretary of State shall make provision for the purpose of providing independent redress, which is free to consumers and funded through the industry, where—

(a) the driver of a vehicle is required to pay unpaid parking charges in respect of parking on relevant land; and either

(b) those charges are disputed; or

(c) there are reasonable grounds for challenging any claimed breach in paragraph (a), including disproportionate charging and inadequate signage.”

45

Insert the following new Clause—

“Alternative Dispute Resolution for unpaid parking charges: further provision

(1) The Secretary of State may by order require persons who engage in the operation of a parking place on private land or the enforcement of parking charges to be members of an approved redress scheme for dealing with complaints in connection with that work.

(2) In subsection (1), the reference to persons who engage in the operation of parking places on private land or the enforcement of charges for parking on private land does not include a reference to persons who engage in that work in the course of their employment.

(3) The power to make an order under subsection (1) shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(4) Before making an order the Secretary of State must be satisfied that all persons who are to be subject to the duty will be eligible to join a suitable approved redress scheme before the duty applies to them.

(5) Nothing in this section prevents an approved redress scheme from providing—

(a) for membership to be open to persons who are not subject to the duty;

(b) for the investigation and determination of any complaints in relation to which the duty does not apply, where the members concerned have voluntarily accepted the jurisdiction of the scheme over those complaints; and

(c) for the exclusion from investigation and determination under the scheme of any complaint in such case or circumstances as may be specified in or determined under the scheme.

(6) For the purposes of this section—

(a) a “redress scheme” is a scheme which provides for complaints against parking businesses to be investigated and determined by an independent person;

(b) a redress scheme is “approved” if it is administered by or on behalf of the Secretary of State and designated by him or her as an approved redress scheme for the purposes of this section; and

(c) a “complaint” is a complaint made by a person by virtue of his or her having received a demand to pay parking charges in respect of parking on relevant land.

(7) The Secretary of State may not designate a scheme as an approved redress scheme for the purposes of this section unless the Secretary of State is satisfied that the scheme will provide independent redress, be free to consumers and be funded through the industry.

(8) If a duly authorised officer of an enforcement authority believes that a person has engaged (or is engaging) in the operation of parking places or enforcement of parking charges on private land, in breach of the duty imposed by an order under sub-section (1), he or she may give a penalty charge notice to that person.

(9) Schedules 4A and 4B (which make further provision in connection with redress schemes) shall have effect.”

Schedule 4

LORD HENLEY

46

Page 138, line 45, at end insert—

“( ) In sub-paragraph (5)(d) the reference to arrangements for the resolution of disputes or complaints includes—

(a) any procedures offered by the creditor for dealing informally with representations by the hirer about the notice or any matter contained in it; and

(b) any arrangements under which disputes or complaints (however described) may be referred by the hirer to independent adjudication or arbitration.”

After Schedule 4

BARONESS HAYTER OF KENTISH TOWN

BARONESS ROYALL OF BLAISDON

LORD ROSSER

47

Insert the following new Schedule—

“SCHEDULE 4A Recovery of unpaid parking charges: Alternative dispute resolution Approval of redress schemes

1 (1) A redress scheme may be approved for the purposes of section 56B by the relevant authority acting on behalf of the Secretary of State acting in accordance with sub-paragraphs (2) to (3).

(2) A scheme may not be approved unless the Secretary of State considers that—

(a) the provisions of the scheme; and

(b) the manner in which it will be operated (so far as can be judged from facts known to the relevant authority);

are satisfactory for the purposes of section 56B.

(3) Without prejudice to the generality of sub-paragraph (2), a scheme must not be approved unless the Secretary of State considers that it makes satisfactory provision about—

(a) the complaints which may be made under the scheme (which may include complaints about non-compliance with the provisions of a code of practice or other document);

(b) the independent person’s duties and powers in relation to the investigation and determination of complaints (which may include power to decide not to investigate or determine a particular complaint);

(c) the redress which the independent person may require members to provide to complainants, which must include the types of redress specified in sub-paragraph (4); and

(d) the enforcement of any requirement to provide redress imposed on a member in accordance with the scheme.

(4) The types of redress mentioned in sub-paragraph (3)(c) are—

(a) providing an apology or explanation;

(b) paying compensation; and

(c) taking such other actions in the interests of the complainant as the independent person may specify.

(5) The Secretary of State must not approve a scheme unless he or she considers that the scheme makes satisfactory provision about the provision of information by the independent person or the scheme administrator to—

(a) persons exercising functions under other approved schemes;

(b) persons exercising functions under other consumer redress schemes; and

(c) other persons exercising regulatory functions in relation to the activities of persons engaging in the operation of private parking or enforcement of unpaid charges.

Applications for approval to the Secretary of State

2 (1) An application for approval by the Secretary of State of a redress scheme must—

(a) be made in such manner as the Secretary of State may determine; and

(b) be accompanied by such information as the Secretary of State may require.

(2) Where the Secretary of State is proposing to refuse an application for approval he or she must give the applicant a notice stating—

(a) that the Secretary of State is proposing to refuse the application;

(b) the grounds of the proposed refusal; and

(c) that representations about the proposed refusal may be made within such period of not less than 30 days is specified in the notice.

(3) If the Secretary of State decides to refuse an application for approval, he or she must give the applicant a notice stating—

(a) the Secretary of State’s decision to refuse the application; and

(b) the reasons for the decision.

Notification of changes to an approved scheme

3 The scheme administrator of a redress scheme which is approved by the Secretary of State must notify the Secretary of State of any change to the scheme before the end of the period of fourteen days beginning with the day on which the change is made.

Withdrawal of approval by the Secretary of State

4 (1) The Secretary of State may withdraw approval of a redress scheme which is for the time being approved by him or her.

(2) Before withdrawing approval of a scheme, the Secretary of State must give the scheme administrator a notice stating—

(a) that he or she proposes to withdraw its approval;

(b) the grounds for the proposed withdrawal of approval; and

(c) that representations about the proposed withdrawal may be made within such period of not less than thirty days as specified in the notice.

(3) The Secretary of State must give the scheme administrator a notice stating—

(a) his or her decision on a proposal to withdraw approval; and

(b) the reasons for his or her decision.

(4) If the Secretary of State decides to withdraw approval of a scheme—

(a) the withdrawal has effect from such date as may be specified in the notice under sub-paragraph (3); and

(b) the scheme administrator must give a copy of the notice under sub-paragraph (3) to every member of the scheme.”

48

Insert the following new Schedule—

“SCHEDULE 4B Enforcement of parking charges: penalty charges

1 A penalty charge notice given to a person under section 56B(8) by a duly authorised officer of an enforcement authority must—

(a) state the officer’s belief that that person has committed a breach of the duty imposed by an order under section 1;

(b) give such other particulars of the circumstances as may be necessary to give reasonable notice of the breach of duty;

(c) require that person, within a period specified in the notice—

(i) to pay a penalty charge specified in the notice; or

(ii) to give notice to the enforcement authority that he wishes to review the notice;

(d) state the effect of paragraph 8;

(e) specify the person to whom and the address at which the penalty charge may be paid and the method or methods by which payment may be made; and

(f) specify the person to whom and the address at which a notice requesting a review may be sent (and to which any representations relating to the review may be addressed).

2 The penalty charge specified in the notice shall be of such amount (not exceeding £1,000) as may be prescribed for the time being by regulations made by the Secretary of State.

3 (1) The period specified under paragraph 1(c) must not be less than 28 days beginning with the day after that on which the penalty charge notice was given.

(2) The enforcement authority may extend the period for complying with the requirement mentioned in paragraph 1(c) in any particular case if they consider it appropriate to do so.

4 The enforcement authority may, if they consider that the penalty charge notice ought not to have been given, give the recipient a notice withdrawing the penalty charge notice.

5 (1) If, within the period specified under paragraph 1(c) (or that period as extended under paragraph 3(2)), the recipient of the penalty charge notice gives notice to the enforcement authority requesting a review, the authority shall—

(a) consider any representations made by the recipient and all other circumstances of the case;

(b) decide whether to confirm or withdraw the notice; and

(c) give notice of their decision to the recipient.

(2) A notice under sub-paragraph (1)(c) confirming the penalty charge notice must also state the effect of paragraphs 6(1) to (3) and 8(1) and (3).

(3) If the authority is not satisfied—

(a) that the recipient committed the breach of duty specified in the notice;

(b) that the notice was given within the time allowed by section 1 and complies with the other requirements imposed by or under this Schedule; and

(c) that in the circumstances of the case it was appropriate for a penalty charge notice to be given to the recipient;

they shall withdraw the penalty charge notice.

6 (1) If after a review the penalty charge notice is confirmed by the enforcement authority, the recipient may, within the period of 28 days beginning with the day after that on which the notice under paragraph 5(1)(c) is given, appeal to a county court against the penalty charge notice.

(2) The county court may extend the period for appealing against the notice.

(3) Such an appeal must be on one (or more) of the following grounds—

(a) that the recipient did not commit the breach of duty specified in the penalty charge notice;

(b) that the notice was not given within the time allowed by section 1 or does not comply with any other requirement imposed by or under this Schedule; or

(c) that in the circumstances of the case it was inappropriate for the notice to be given to the recipient.

(4) An appeal against a penalty charge notice shall be by way of a rehearing; and the county court shall either uphold the notice or quash it.

7 If the penalty charge notice is withdrawn or quashed, the authority shall repay any amount previously paid as a penalty charge in pursuance of the notice.

8 (1) The amount of the penalty charge is recoverable from the recipient of the penalty charge notice as a debt owed to the authority unless—

(a) the notice has been withdrawn or quashed; or

(b) the charge has been paid.

(2) Proceedings for the recovery of the penalty charge may not be commenced before the end of the period mentioned in paragraph 5(1).

(3) And if within that period the recipient of the penalty charge notice gives notice to the authority that he wishes the authority to review the penalty charge notice, such proceedings may not be commenced—

(a) before the end of the period mentioned in paragraph 6(1); and

(b) where the recipient appeals against the penalty charge notice, before the end of the period of 28 days beginning with the day on which the appeal is withdrawn or determined.

9 In proceedings for the recovery of the penalty charge, a certificate which—

(a) purports to be signed by or on behalf of the person having responsibility for the financial affairs of the enforcement authority; and

(b) states that payment of the penalty charge was or was not received by a date specified in the certificate;

is evidence of the facts stated.

10 The Secretary of State may by regulations make provision supplementary or incidental to the provisions of this Schedule, including in particular provision prescribing—

(a) the form of penalty charge notices or of any other notice mentioned in this Schedule;

(b) circumstances in which penalty charge notices may not be given;

(c) the method or methods by which penalty charges may be paid.

11 Any power to make regulations under this Schedule shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.”

Clause 58

LORD ARMSTRONG OF ILMINSTER

BARONESS ROYALL OF BLAISDON

LORD ROSSER

BARONESS LIDDELL OF COATDYKE

49

Page 42, line 3, leave out “and” and insert “or

(iii) at any time when Parliament is sitting or is in recess the Secretary of State, with the concurrence of the Attorney General, considers that it would be inexpedient to introduce primary legislation to authorise a temporary extension of detention either because of time constraints or because of the risk of prejudicing the possibility of a fair trial of a person suspected of or charged with a terrorist offence or because of unacceptable risk to public safety or to security, and”

Clause 64

BARONESS ROYALL OF BLAISDON

50

Page 51, leave out lines 22 to 24

LORD HENLEY

50A*

Page 51, line 24, at end insert—

“(2C) The reference in subsection (2B)(b) to day to day supervision is a reference to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned.”

LORD ADDINGTON

BARONESS HEYHOE FLINT

51

Page 51, line 24, at end insert—

“(2C) The registered person shall determine the application of paragraph (2B)(b) by reference to guidance issued by the Secretary of State.

(2D) This guidance—

(a) shall be drafted in consultation with organisations which assume responsibility for the safeguarding of children;

(b) shall be given in writing.”

BARONESS WALMSLEY

BARONESS RANDERSON

52

Page 52, line 20, at end insert—

“( ) in sub-paragraph (1) after paragraph (f) insert—

“(g) any work in a further education college, as defined under the Further and Higher Education Act 1992, where the normal duties of that work involve regular contact with children.””

BARONESS ROYALL OF BLAISDON

53

Page 52, leave out lines 25 to 28

54

Page 52, leave out lines 33 to 39

LORD HENLEY

54A*

Page 52, line 39, at end insert—

“(3BA) The references in subsections (3A) and (3B)(b) to day to day supervision are references to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned.”

Clause 67

LORD HENLEY

54B*

Page 55, line 33, leave out from “person,” to end of line 35

54C*

Page 55, line 38, leave out from “person,” to end of line 41

54D*

Page 57, line 23, leave out from “person,” to end of line 25

54E*

Page 57, line 28, leave out from “person,” to end of line 31

Clause 77

LORD HENLEY

54F*

Page 70, line 3, after “it” insert “a barred list or”

54G*

Page 70, line 4, after “a” insert “particular”

54H*

Page 70, line 10, after “a” insert “particular”

After Clause 78

BARONESS ROYALL OF BLAISDON

54J*

Insert the following new Clause—

“Protection from stalking

(1) The Protection from Harassment Act 1997 is amended as follows.

(2) In section 2 (offence of harassment), for subsection (2) substitute—

“(2) A person guilty of an offence under this section is liable on summary or indictable conviction to imprisonment for a term not exceeding five years, or a fine not exceeding the statutory maximum.”

4 Offence of stalking

(1) A person (“A”) commits an offence, to be known as the offence of stalking, where A stalks another person (“B”).

(2) For the purposes of subsection (1), A stalks B where—

(a) A engages in a course of conduct,

(b) subsection (3) or (4) applies, and

(c) A’s course of conduct causes B to suffer fear, alarm, distress or anxiety.

(3) This subsection applies where A engages in the course of conduct with the intention of causing B to suffer fear, alarm, distress or anxiety.

(4) This subsection applies where A knows, or ought in all the circumstances to have known, that engaging in the course of conduct would be likely to cause B to suffer fear, alarm, distress or anxiety.

(5) It is a defence for a person charged with an offence under this section to show that the course of conduct—

(a) was authorised by virtue of any enactment or rule of law,

(b) was engaged in for the purpose of preventing or detecting crime, or

(c) was, in the particular circumstances, reasonable.

(6) In this section—

“conduct” means (inter alia)—

(a) following B or any other person,

(b) contacting, or attempting to contact, B or any other person by any means,

(c) publishing any statement or other material—

(i) relating or purporting to relate to B or to any other person,

(ii) purporting to originate from B or from any other person,

(d) monitoring the use by B or by any other person of the internet, email or any other form of electronic or other communication, or making improper use of public electronic communications networks or leaving messages of a menacing character,

(e) entering any premises,

(f) loitering in any place (whether public or private),

(g) interfering with any property in the possession of B or of any other person,

(h) giving anything to B or to any other person or leaving anything where it may be found by, given to or brought to the attention of B or any other person—

(i) watching or spying on B or any other person,

(ii) acting in any other way that a reasonable person would expect would cause B to suffer fear or alarm, and

“course of conduct” involves conduct on at least two occasions.

(7) For the purposes of this section, a person misuses an electronic communications network or electronic communications service or other social media if—

(a) the effect or likely effect of use of the network or service by A is to cause B, another person, unnecessarily to suffer annoyance, inconvenience or anxiety;

(b) A uses the network or service to engage in conduct the effect or likely effect of which is to cause B, another person, unnecessarily to suffer annoyance, inconvenience or anxiety.

(8) The Secretary of State may by regulation add further forms of conduct to subsection (6)(b) above.

(9) A person convicted of the offence of stalking is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both,

(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

(10) Subsection (9) applies where, in the trial of a person (“the accused”) charged with the offence of stalking, the jury or, in summary proceedings, the court—

(a) is not satisfied that the accused committed the offence, but

(b) is satisfied that the accused committed an offence under section 38(1).

(11) The jury or, as the case may be, the court may acquit the accused of the charge and, instead, find the accused guilty of an offence under section 38(1).””

54K*

Insert the following new Clause—

“Regulation on protection from stalking

(1) The Secretary of State shall by regulation introduce any measures which are designed to—

(a) prevent and treat stalking behaviour; or

(b) support victims of stalking and stalking behaviour.

(2) Regulations made under subsection (1) shall provide for, inter alia—

(a) mandatory training for criminal justice staff;

(b) risk assessments for victims;

(c) psychiatric assessments for perpetrators;

(d) A Victims’ Advocacy Scheme;

(e) treatment programmes for perpetrators;

(f) a review of sentencing guidelines; and

any other matters relevant to the prevention of stalking and harassment.

(3) Regulations made under subsection (1) are subject to affirmative resolution by each House of Parliament.”

54L*

Insert the following new Clause—

“Regulation on protection from stalking

(1) The Secretary of State shall by regulation introduce any measures which are designed to—

(a) prevent and treat stalking behaviour; or

(b) support victims of stalking and stalking behaviour.

(2) Regulations made under subsection (1) are subject to affirmative resolution by each House of Parliament.

Schedule 7

LORD HENLEY

54M*

Page 148, line 10, at end insert—

“(2C) The reference in sub-paragraph (2B)(b) to day to day supervision is a reference to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned.”

54N*

Page 149, line 2, at end insert—

“(3BA) The references in sub-paragraphs (3A) and (3B)(b) to day to day supervision are references to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned.”

54P*

Page 151, line 31, leave out from “person,” to end of line 33

54Q*

Page 151, line 36, leave out from “person,” to end of line 39

54R*

Page 153, line 19, leave out from “person,” to end of line 21

54S*

Page 153, line 24, leave out from “person,” to end of line 27

54T*

Page 166, line 5, after “it” insert “a barred list or”

54U*

Page 166, line 5, after “a” insert “particular”

54V*

Page 166, line 12, after “a” insert “particular”

Clause 79

LORD HENLEY

54W*

Page 72, line 16, at end insert—

“120AD Registered persons: copies of certificates in certain circumstances

(1) Subsection (2) applies if—

(a) the Secretary of State gives up-date information in relation to a criminal record certificate or enhanced criminal record certificate,

(b) the up-date information is advice to apply for a new certificate or (as the case may be) request another person to apply for such a certificate, and

(c) the person whose certificate it is in respect of which the up-date information is given applies for a new criminal record certificate or (as the case may be) enhanced criminal record certificate.

(2) The Secretary of State must, in response to a request made within the prescribed period by the person who is acting as the registered person in relation to the application, send to that person a copy of any certificate issued in response to the application if the registered person—

(a) has counter-signed the application or transmitted it to the Secretary of State under section 113A(2A) or 113B(2A),

(b) has informed the Secretary of State that the applicant for the new certificate has not, within such period as may be prescribed, sent a copy of it to a person of such description as may be prescribed, and

(c) no prescribed circumstances apply.

(3) The power under subsection (2)(b) to prescribe a description of person may be exercised to describe the registered person or any other person.

(4) In this section “up-date information” has the same meaning as in section 116A.”

LORD ADDINGTON

BARONESS HEYHOE FLINT

BARONESS ROYALL OF BLAISDON

55

Page 72, line 16, at end insert—

“120AD Registered persons: information provided in certain circumstances

The Secretary of State must, in response to a request from a person acting as the registered person in relation to an application under section 113A or 113B, provide that person with a copy of the certificate if the following conditions are satisfied—

(a) a period of 28 days has elapsed since the certificate was issued to the applicant,

(b) the registered person has not been notified of the applicant’s decision to withdraw their application for the role in question, and

(c) no appeal has been made by the applicant against information contained within that certificate.”

Clause 102

BARONESS BRINTON

BARONESS BENJAMIN

56

Page 92, line 2, at end insert—

“( ) Section 22 of the Freedom of Information Act 2000 is amended as follows.

( ) After subsection (1) (Information intended for future publication), insert—

“(1A) Information obtained in the course of, or derived from, a programme of research or research project is exempt information if—

(a) the programme or project is continuing with a view to a report of the research (whether or not including a statement of that information) being published, and

(b) disclosure of the information before the date of publication would, or would be likely to, prejudice substantially—

(i) the programme or project;

(ii) peer review of the programme or project;

(iii) the interests of any individual participating in the programme or project;

(iv) the interests of the authority which holds the information or the interests of any party collaborating with the authority in connection with the programme or project;

(v) the physical or mental health of any individual.””

After Clause 110

LORD MCCOLL OF DULWICH

BARONESS ROYALL OF BLAISDON

BARONESS BUTLER-SLOSS

LORD CARLILE OF BERRIEW

57

Insert the following new Clause—

“Legal advocate for child victim of human trafficking

(1) It shall be a requirement that each child who might have been the victim of a human trafficking offence shall have a legal advocate appointed to represent the best interests of that child if the person who has parental responsibility fulfils any of the conditions set out in subsection (3).

(2) The legal advocate shall have the following responsibilities—

(a) to advocate that all decisions taken are in the child’s best interest;

(b) to advocate for the child to receive appropriate care, accommodation, medical treatment, including psychological assistance, education, translation and interpretation services;

(c) to advocate for the child’s legal right to remain;

(d) to advocate for the child’s access to legal and other representation where necessary;

(e) to consult with, advise and keep the child victim informed of legal rights;

(f) to contribute to identification of a plan to safeguard and promote the long-term welfare of the child based on an individual assessment of that child’s best interests;

(g) to keep the child informed of all relevant immigration, criminal or compensation proceedings;

(h) to provide a link between the child and various organisations which may provide services to the child;

(i) to assist in establishing contact with the child’s family, where the child so wishes and it is in the child’s best interests;

(j) to attend all police interviews with the child; and

(k) to accompany the child whenever the child moves to new accommodation.

(3) Subsection (1) applies if the person who has parental responsibility for the child—

(a) is suspected of taking part in a human trafficking offence;

(b) has another conflict of interest with the child;

(c) is not in contact with the child; or

(d) is in a country outside the United Kingdom.

(4) In subsection (1), a legal advocate may be—

(a) an employee of a statutory body;

(b) an employee of a recognised charitable organisation; or

(c) a volunteer for a recognised charitable organisation.

(5) Where a legal advocate is appointed under subsection (1), it shall be a requirement that any relevant agency recognises the authority of the legal advocate in relation to the child.

(6) In subsection (5), a “relevant agency” means a person or organisation which—

(a) provides services to the child; or

(b) the child needs access to in relation to being a victim of a human trafficking offence.

(7) The Secretary of State—

(a) shall by order set out the arrangements for the appointment of a legal advocate;

(b) may make rules about the training courses to be completed before a person may exercise functions as a legal advocate; and

(c) shall by order designate organisations as a “recognised charitable organisation” for the purpose of this section.

(8) In this section—

“human trafficking offence” means an offence under section 59A of the Sexual Offences Act 2003 (trafficking people for sexual exploitation) or an offence under section 4 of the Asylum and Immigration (treatment of Claimants, etc.) Act 2004 (trafficking people for labour and other exploitation); and

“parental responsibility” has the same meaning as section 3 of the Children Act 1989.”

Schedule 9

LORD HENLEY

58*

Page 179, line 37, at end insert—

“In section 113A (criminal record certificates) omit subsection (10).

In section 113B (enhanced criminal record certificates) omit subsection (13).”

59*

Page 182, line 25, leave out “7(1)(i) or (j)” and insert “7(1)(f) or (g)”

60*

Page 182, line 38, leave out “for “will” substitute “may”” and insert “after “will” insert “or (as the case may be) may”.”

61*

Page 185, line 17, leave out “for “will” substitute “may”” and insert “after “will” insert “or (as the case may be) may”.”

62*

Page 185, line 36, leave out “and 120AC” and insert “, 120AC and 120AD”

63*

Page 186, line 3, leave out “and 120AC” and insert “, 120AC and 120AD”

64*

Page 187, line 7, at end insert—

“( ) After subsection (2) insert—

“(2A) Where, in connection with the provision of up-date information under section 116A, the chief officer of a police force receives a request for information of the kind mentioned in section 113B(4), the chief officer of police must comply with it as soon as practicable.””

65*

Page 188, line 14, at end insert “, 120AC(1) or 120AD(2)”

66*

Page 188, line 17, leave out “or 120AC(1)” and insert “, 120AC(1) or 120AD(2)”

67*

Page 188, line 23, at end insert “or 120AD”

Schedule 10

LORD HENLEY

68*

Page 196, line 36, column 2, at beginning insert—

“Section 113A(10).
Section 113B(13).”

69*

Page 203, line 5, at end insert—

“Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Miscellaneous Provisions) Regulations 2010 (S.I. 2010/1146). Regulation 4(2).
Regulation 8.”

Clause 114

LORD HENLEY

70*

Page 100, line 42, after “Part 1” insert “and any Welsh provision”

71*

Page 100, line 42, at end insert—

“(2) The Welsh Ministers may by order made by statutory instrument make such transitional, transitory or saving provision as the Welsh Ministers consider appropriate in connection with the coming into force of any Welsh provision.

(3) In this section “Welsh provision” means any provision of this Act so far as it falls within section 118(3).”

Clause 117

LORD HENLEY

72*

Page 102, line 2, after “1997” insert “(excluding sections 113A(10) and 113B(13) of that Act)”

73*

Page 102, line 41, leave out “116” and insert “115”

74*

Page 103, line 3, leave out subsection (9)

Prepared 31st January 2012